Knapp v. Ruser

Supreme Court of Nebraska

September 1, 2017

Patricia A. Knapp, appellant,v.Kevin Ruser, in his official capacity, and the University of Nebraska Board of Regents, appellees.

1.
Summary Judgment: Appeal and Error. An
appellate court will affirm a lower court's grant of
summary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as
to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter
of law.

2. __:
__. In reviewing a summary judgment, an appellate court views
the evidence in the light most favorable to the party against
whom the judgment was granted and gives that party the
benefit of all reasonable inferences deducible from the
evidence.

3.
Motions for New Trial: Appeal and Error. An
appellate court reviews a denial of a motion for new trial
or, in the alternative, to alter or amend the judgment, for
an abuse of discretion.

5.
Fair Employment Practices: Discrimination:
Proof. A prima facie case of gender discrimination
requires the plaintiff to prove that he or she (1) is a
member of a protected class, (2) was qualified to perform the
job, (3) suffered an adverse employment action, and (4) was
treated differently from similarly situated persons of the
opposite sex.

6. __:
__: __. The test to determine whether employees are similarly
situated to warrant a comparison to a plaintiff is a rigorous
one and the plaintiff has the burden of demonstrating that
there were individuals similarly situated in all relevant
aspects to the plaintiff by a preponderance of the evidence.

8.
Claims: Fair Employment Practices: Discrimination:
Wages: Proof. When bringing a claim of wage
discrimination based on sex under Neb. Rev. Stat. §
48-1221(1) (Reissue 2010), a plaintiff must first establish a
prima facie case by showing by a preponderance of the
evidence that (1) the plaintiff was paid less than a person
of the opposite sex employed in the same establishment; (2)
for equal work on jobs requiring equal skill, effort, and
responsibility; (3) which were performed under similar
working conditions. If a plaintiff establishes a prima facie
case of wage discrimination based on sex, the burden then
shifts to the defendant to prove one of the affirmative
defenses set forth in § 48-1221(1).

9.
Fair Employment Practices: Proof. A
plaintiff must establish a prima facie case of retaliation
under Neb. Rev. Stat. § 48-1114 (Reissue 2010) by
showing (1) he or she engaged in protected conduct, (2) he or
she was subjected to an adverse employment action, and (3)
there was a causal connection between the protected conduct
and the adverse action.

10. __:
__. To satisfy the adverse employment action requirement in a
retaliation claim, a plaintiff must show that a reasonable
employee would have found the challenged action materially
adverse. This, in turn, requires a showing that the
employment action might have dissuaded a reasonable worker
from reporting the alleged unlawful practice. To meet this
burden, a plaintiff must demonstrate that the employment
action was material, not trivial, and that it resulted in
some concrete injury or harm.

11.
Claims: Fair Employment Practices: Public Policy:
Damages. Under the public policy exception to the
at-will employment doctrine, an employee may claim damages
for wrongful discharge when the motivation for the firing
contravenes public policy. The public policy exception is
restricted to cases when a clear mandate of public policy has
been violated, and it should be limited to manageable and
clear standards. In determining whether a clear mandate of
public policy is violated, courts should inquire whether the
employer's conduct contravenes the letter or purpose of a
constitutional, statutory, or regulatory provision or scheme.

Appeal
from the District Court for Lancaster County: Horacio J.
Wheelock, Judge. Affirmed.

John
C. Wiltse, of University of Nebraska, and David R. Buntain,
of Cline, Williams, Wright, Johnson & Oldfather, L.L.P.,
for appellees.

Heavican, C.J., Wright, Miller-Lerman, Cassel, Kelch, and
Funke, JJ.

Miller-Lerman, J.

I.
NATURE OF CASE

Patricia
A. Knapp filed an action against Kevin Ruser, in his official
capacity, and the Board of Regents of the University of
Nebraska in which she asserted claims of discriminatory wage
and employment practices based on her sex as well as claims
of employment retaliation. Knapp's claims arose from
alleged occurrences while she was a supervising attorney for
the civil clinical law program at the University of Nebraska
College of Law. Knapp appeals the orders of the district
court for Lancaster County in which the court sustained the
defendants' motion for summary judgment and overruled her
motion to alter or amend the judgment. We affirm the district
court's orders.

II.
STATEMENT OF FACTS

Knapp
commenced this action with a complaint filed in the district
court on July 11, 2014. In that complaint, Knapp set forth
eight claims for relief, some based on state law and some
based on federal law. In August, the defendants had the
action removed to the U.S. District Court for the District of
Nebraska. In November 2015, the federal court sustained the
defendants' motion for summary judgment in part and
dismissed certain of Knapp's claims, which were based on
federal law, with prejudice. The federal court remanded the
remaining claims, which were based on Nebraska state law, to
the district court for Lancaster County for further
proceedings. Knapp v. Ruser,145 F.Supp. 3d 846 (D.
Neb. 2015). Upon remand to the state court, Knapp filed an
amended [297 Neb. 642] complaint which mirrored the operative
amended complaint she had filed in the federal court. In the
amended complaint, she set forth 10 claims for relief. The
federal court had dismissed the first through third, sixth,
eighth, and tenth claims. Also, it remanded the fourth,
fifth, seventh, and ninth claims for further proceedings in
the state court. Accordingly, our consideration on appeal is
limited to the state district court's disposition of four
claims identified in the operative complaint as the fourth,
fifth, seventh, and ninth claims.

1.
Background/Facts

Knapp,
an attorney, began working in the civil clinic as a temporary
half-time employee in the summer of 1999. At that time, the
director of clinical programs was on a sabbatical, and Knapp
was hired to cover the portion of his responsibilities that
concerned the civil clinic. After the director returned from
sabbatical and informed the college that he would be leaving
at the end of the fall semester, Knapp was hired as a
temporary half-time employee beginning in the spring 2000
semester. The understanding was that she would cover the
former director's duties with respect to the civil clinic
while the law school considered its long-term strategic plan
for the clinical programs.

Knapp's
half-time employment in the civil clinic ended in August 2004
after Ruser was named director of the clinical programs and
the law school hired Richard Moberly to perform the duties
Knapp had performed in the civil clinic. In 2006, the law
school again hired Knapp as a half-time employee in the civil
clinic after it determined that Moberly's half-time
status was not sufficient to meet student needs. While Knapp
and Moberly split duties in the civil clinic, Moberly held a
full-time position which included additional responsibilities
such as teaching doctrinal classes, research, and community
service.

Knapp
continued to work half-time in the civil clinic until August
2011, when Moberly became an associate dean of the law school
and gave up his duties in the civil clinic. Knapp [297 Neb.
643] and Ruser agreed that Knapp's employment as
supervising attorney in the civil clinic should go to full
time. Knapp's position was classified as that of
"Temporary Lecturer" and was designated as a
'"Special Appointment.'" Knapp met with the
dean of the law school to discuss her full-time salary; the
dean offered Knapp an annual salary of $80, 000. After Knapp
told the dean that the salary was low, the dean told Knapp
that she would explore the possibility of increasing the
salary by seeking a designation for the position as a
"'professor of practice.'" Knapp agreed to
accept the salary for the upcoming academic year based on
what she believed to be the dean's "good-faith
commitment" to find a way to increase her salary. When
Knapp told Ruser the salary she had been offered, Ruser told
her that the dean had '"low-balled"' her.

A year
later, in August 2012, Ruser left a letter for Knapp setting
forth proposed terms and conditions for her employment in the
upcoming academic year. The letter stated that her salary
would again be $80, 000. Prior to receiving the letter, Knapp
had had no other communication with the law school's
administration regarding her salary for the upcoming year.
The letter prompted Knapp to check the salaries of others
working in the clinical programs. She learned from the
University of Nebraska's website that a male professor
had been hired in March 2012 to teach a business transactions
clinic at a salary of $106, 000 per year. Knapp thereafter
spoke with Ruser regarding her salary, and she told him that
after seeing others' salaries, she thought that the
salary structure in the clinical programs was
"skewed" and that the clinics had a
'"gender equity' problem" that Ruser needed
to address. Ruser responded that he was
"'baffled'" by Knapp's allegations of
discrimination and that the new male professor's higher
salary was justified by the fact that his position was a
tenure track position.

Knapp
alleged that the conversation became heated and that
afterward, Ruser's behavior and demeanor toward her
changed. Knapp alleged that Ruser acted more hostile and [297
Neb. 644] that he stopped adequately communicating with her.
Knapp also observed that Ruser appeared to be neglecting his
own duties in the clinic, including supervision of students
and cases. After adopting a child in the spring semester,
Ruser went to half time, and Knapp alleged that he
"disengaged even further" from the clinic, with the
result being that the clinic "was not fulfilling its
ethical obligations to its clients or to its students."

In
April 2013, Knapp learned that Ruser would be receiving a
lifetime achievement award from the law school. Although
other members of the clinic's staff had known of the
award for several weeks and had been invited to sit at
Ruser's table at the award ceremony, Ruser had not
mentioned the award to Knapp. This incident prompted Knapp to
conclude that her relationship with Ruser "was so badly
damaged that it had become impossible for them to work
together as law partners in a way that would meet their
ethical obligations to their clients and to their
students."

Knapp
decided to leave her job at the clinic, but a coworker
encouraged her to speak with the dean about what was
happening in the clinic. Knapp met with the dean and informed
her of several problems that she perceived in the clinic.
Knapp told the dean that problems had existed for women in
the clinical program since the early 1980's, when Knapp
was a student at the college. Knapp informed the dean of
various concerns she had regarding Ruser's management of
the clinical programs, focusing on "the environment
created for women in the clinical programs over the
years" by Ruser and his male associates. Knapp alleged
that after listening to Knapp's concerns, the dean
"did not offer to help in any way but wished [Knapp]
well." Knapp's employment in the clinic ended on May
31, 2013.

2.
Federal District Court's Disposition of Claims

The
federal district court concluded that because of sovereign
immunity, it lacked jurisdiction to hear four of Knapp's
[297 Neb. 645] claims: the fourth, fifth, seventh, and ninth.
Those four claims were based on state law, and the federal
court found that the state statutory schemes underlying the
claims were not "sufficiently explicit to effect a
waiver of sovereign immunity to suit in federal court."
Knapp v. Ruser,145 F.Supp.3d 846, 855 (D. Neb.
2015). The federal court therefore remanded the four claims
for further proceedings in the state district court.

The
federal court determined that the six remaining claims- the
first through third, sixth, eighth, and tenth-were asserted
under federal law and that Congress had abrogated states'
sovereign immunity for those claims. The court stated that
five of the claims arose under title VII of the Civil Rights
Act of 1964. 42 U.S.C. § 2000e (2012) (Title VII), and
that the remaining claim arose under the Equal Pay Act, 29
U.S.C. § 206(d) (2012) (EPA). The federal district ...

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